HOW THE MERITS MATTER: DIRECTORS’ AND OFFICERS’ INSURANCE AND SECURITIES SETTLEMENTS

This Article seeks what may be the holy grail of securities law scholarship— the role of the “merits” in securities class actions—by investigating the relationship between settlements and directors’ and officers’ (D&O) liability insurance. Drawing upon in-depth interviews with plaintiffs’ and defense lawyers, D&O insurance claims managers, monitoring counsel, brokers, mediators, and testifying experts, we elucidate the key factors influencing settlement and examine the relationship between these factors and notions of merit in civil litigation. We find that, although securities settlements are influenced by some factors that are arguably merit related, such as the “sex appeal” of a claim’s liability elements, they are also influenced by many that are not, including, most obviously, the amount and structure of D&O insurance. The virtual absence of adjudication results in payment to the plaintiffs’ class for every claim surviving the motions stage and, as importantly, a lack of authoritative guidance about merit at settlement. Without such adjudication, the weight of various factual patterns is untested, and the validity of competing damages models remains